ABC has a rebuttal to the $1.4 million fine for the flash of Charlotte Roos’ buttocks on NYPD Blue, saying FCC has changed the rules and ignored the First Amendment

By Alex Ben Block

HOLLYWOOD, CA (Hollywood Today) 2/12/2008 – The ABC television network has filed a response to the FCC fines of about $1.4 million for a briefly flashed buttocks seen in an episode of “NYPD Blue” five years ago, which is part of the process of appealing to the commission to reverse its order.

“The FCC’s action was inconsistent with the Commission’s own indecency standards, procedural requirements, and prior decisions; with the indecency statute; and with the First Amendment,” ABC said.

(See Alex’s Video on this touchy subject!)  

“When the brief scene in question was telecast almost five years ago,” ABC said in a statement, “this critically acclaimed drama had been on the air for a decade and the realistic nature of its storylines were well known to the viewing public.”

That is a reference to the change in what is acceptable after the Republican administration replaced the Democrats with the election of George Bush. During the prior years, a flash of a butt on “NYPD Blue” had been accepted as part of the dramatic storytelling of the series, which also provides on-screen warnings about the nature of the content during the show.

Under Chairman Kevin Martin, the FCC has become much more conservative and quicker to make judgments about the content of shows. In this case the FCC acted even though almost all of the complaints came from activist organizations rather than a sampling of real viewers. The FCC said that didn’t matter. It could and would act as long as there were complaints.

The ABC action also included a filing by the ABC Affiliates Association representing the more than 50 stations fined, but not owned by ABC. Ray Cole, Chairman of the ABC Affiliates Association’s Board of Governors, commented: “The ABC Affiliates support our network in its view that the portion of the episode of NYPD Blue in question is not actionably indecent under the law. ABC Affiliates also believe that the process and procedures employed by the Commission in the handling of this matter were deeply flawed and violate well-settled legal standards.”

The commission will now, at some point, put the order through a review process. Since it will be reviewed by the same FCC commissioners who gave the original order, the outcome may well be the same. It is unclear if that happens what ABC and the ABC affiliated stations would do next. A network spokesman has declined to speculate about that.

ABC, if it loses at the FCC, would have the right to ask the Federal Court to review the matter.